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State v Dowan [2018] PGNC 461; N7439 (30 August 2018)

N7439

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 120 & 121 OF 2018

STATE

V

IKI DOWAN & PAUL EMBA

Waigani: Miviri AJ
2018: 29th August

CRIMINAL LAW – PRACTICE AND PROCEDURE –State Application to change venue for trial Mt Hagen – ss.522 CCA – Ex officio Indictment – Waigani – S407 conspiracy to defraud –objection by accused – application refused.

Facts
State applied to have both accused stand trial in Mt Hagen conspiracy to defraud state of K4 million.

Held
Application not made out.
Material in support lacking
Basis in Law not made out
Application refused.
Trial ordered at Waigani.

Cases:
In the Matter of an Application for an Order of Transfer of place of trial: The State v Theo Yandalan, Japeth Kapalin and Leo Morris [1994] PNGLR 405

Counsel:

T. Aihi, for the State
R. Yansion, for the Accused.

RULING

30^th August, 2018

1. MIVIRI AJ: This is the ruling on an application made by the State for venue for trial to be changed to Mt Hagen in the matter.
   
2. The State has filed a Notice of Motion dated the 6^th July, 2018 filed the 9^th July, 2018 seeking to have the trial in the matter moved location from Waigani to Mt Hagen. The Notice of Motion does not invoke the basis in law for the Application. But in Court Counsel has referred the basis as Section 522 (2) of the Criminal Code. That is the basis in law for this Application and Counsel ought to have made preparation in that light. Because that will be the basis upon which the Application stands or falls. The Notice of Motion would have been bare without.
   
3. The Motion relies on the affidavit sworn 6^th July, 2018 filed 9^th July, 2018 of Helen Roalakona officer In Charge Serious Corruption and Dishonesty Unit, Office of the Public Prosecutor whereby she swears that the subject criminal matter against the accused arise over an intent to defraud the State over a land Yombikul Mt Hagen Western Highlands Province. That there was conspiracy to defraud to receive compensation in the sum of K4million from the State.
   
4. Reasons advanced is that 8 out of the 12 witnesses are located in Western Highlands. And who they are and what their evidence will be importantly confirm as to their exact location at time of the application. On the 18^th August 2016 the Waigani Committal Court refused to commit both accused to stand trial for insufficiency of evidence. On the 24^th February 2017 under section 526 the Public Prosecutor proceeded with both by ex officio Indictments on the charges then refused by the District Court.
   
5. No doubt the decision of the Public Prosecutor took into consideration that the matter originated from Mt Hagen and the witnesses would be located there. He no doubt moved as he did knowing appreciating Section 522 (1) that the place of trial would be Waigani the place where ex officio indictment was presented against both accused. By taking that decision it was in his mind that he would get the witness into Waigani for trial on the matter.
   
6. The charge is conspiracy with intent to defraud the State of K4million. No doubt it would not necessarily involve viewing land as it were in the case of a scene of murder for example, or for that matter a crime scene. The purpose can be served by getting a survey plan or map of the subject land with photographs if specific features were to be made paramount in the trial. Even then a survey plan or map would meet the call.
   
7. As rightly pointed out by learned counsel for the accused costs must also be considered in their cases. The State has put them into this charge and to take the case up to Mt Hagen will be costs to them. This is not the same situation as in In the matter of an application for an order of transfer of place of trial: The State v Theo Yandalan, Japeth Kapalin and Leo Morris [1994] PNGLR 405 where the court held that the application by prosecution to transfer prosecution of wilful Murder due to the fear held by the eye witnesses for their safety if they testified and the threats of the accused line was good cause. And the application was ordered in the terms of the application made by State. That is not the same here.
   
8. Defence counsel has contended that the witnesses are here in Port Moresby. The State who is making the application has not specified which witnesses are here in Port Moresby and which are in Mt Hagen. Even then it is their application and they have not justified with good cause and material to substantiate. One material is the location availability of witnesses in accordance with evidence of that fact not before the court. Also skeleton of the evidence intended because the subject land is customary and it would not be the subject of ownership but of criminal conspiracy and therefore in all the circumstances on the material presented in support of the application to invoke jurisdiction under Section 522 (2) of the Code has not been made out.
   
9. Accordingly the Application is refused, the matter will proceed to trial in Waigani, time and date will be allocated for that to happen in the pre-trial hearing of the matter.
   
10. Both will continue to observe their conditions of bail as ordered including all reporting conditions until trial time and date is allocated.
    
11. For now the Application by the State is refused.
    

Orders accordingly

__________________________________________________________________

Public Prosecutor : Lawyer for the State

Yansion Lawyers : Lawyer for the Defendant